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The Historical Perspective Of The Contempt Of Courts In India

The Contempt of Court is a matter concerning the fair Administration of Justice, and aims to punish any act hurting the dignity and authority of Judicial Tribunals. Although it is difficult to accurately assess the origins of Contempt Law, there is little doubt that it stems from the Common Law ideal of supremacy and independence of the Judiciary.

Role of Judiciary and its power regarding Contempt of Court has assumed global significance.

The experience of two major legal systems, i.e. Common Law and Civil Law, must be on agenda of discussion for the study of Law of Contempt in common law traditions. Therefore, to make the law functional for a liberal republican structural; and attempt has been made to see the law and procedure regarding Contempt of Court in countries with common and Civil Law Traditions.

History of Contempt of Court in England

The roots of English Law, from which the contemporary contempt doctrine sprouts, are thin but deep in history. The phrase Contempt of Court (contemptus curiae) has been in use in English Law for eight centuries. The Law conferred the power to enforce discipline within its precincts and punish those who fail to comply with its orders.

The Law relating to Contempt of Court has developed over the centuries as a means, whereby, the Courts may act to prevent on punish conduct which tends to obstruct, prejudice or abuse the administration of Justice either in relation to a particular case or generally. In legal system it is based on common law with the exception of certain contain statutory modification in England.
The idea of contempt of the King is referred as an offence in the laws set forth in the first half of the Twelfth Century.

Contempt of the King's Writ was mentioned in the laws of King Henry-I. In the same laws there was mention or primary pecuniary for Contempt or disregard of orders. Thus in England before the end of the Twelfth Century Contempt of Court was a recognized expression and applied to the defaults and wrongful acts of suitors.

After making a study of cases in the Thirteen Century John Charles Fox concluded that there was no indication of trial of Contempt out of Court otherwise than in the ordinary course of the law and many cases of Contempt in Court were tried by indictment and not by a summary process. If the Contempt is confessed there was no need for trial by Jury and such cases of Contempt were disposed of by sentence upon confession.

The earlier form of procedure was attachment by Bill, when trial by Jury was followed, unless the accused confessed. Later the Star Chamber Practice of Attachment and Examination without Jury was substituted for the procedure by Bill. From Fourteenth Century onwards the jurisdiction of the King Justices to punish Contempt's of a criminal nature summarily was limited to offences net heinous, committed in Court in the actual view of the Justices. The summary jurisdiction was held to extend to all Contempt whether committed in or out of Court.''

It seems, therefore, that the Common Law Courts had the power to deal summarily with Contempt committed in their presence. From 1402 to 1640 a number of statutes were passed giving the superior Courts powers to proceed summarily in certain cases against Officers of the Court, including Juror. Styles Practical Registrar published in 1657 shows that, certainly, by the middle of the Seventeenth Century the King's Bench was proceeding summarily against its Officers.

In the Seventeenth Century, an important development in the law of contempt took place in the Court of Chancery. The Writ of Attachment began to be used not merely in the case of those flagrant abuses of the administration of Justice with which the Common Law Courts were not only to deal, but also to compel perfonnances as between parties in a particular Suit.

The Writ of Attachment and Summary Process, thereon, became part of the ordinary procedure of the Court. This development led eventually to the distinction between Criminal and Civil Contempt. In the Seventeenth and Eighteenth Centuries, the distinction was not made as clearly as it was in the Nineteenth Century.

In the Eighteenth Century the Press and the Pamphletees flourished and it was in that period that Contempt in publishing matter calculated to interfere with due administration of Justice became clearly established. It developed in three stages. Firstly, there were examples of persons being published for speaking disrespectfully of the Court on service of process. Secondly, where matters scandalizing the Court constituted Contempt, whenever, published. Thirdly, Court began to punish persons who published matters calculated to prejudice the fair trial of a pending case.

The power to punish for Contempt of Court was applied originally in England to Contempt committed in the presence of the Court. In 1747 Thomas Martin, Mayor of Great Yamouth, sent a banknote fundamental rights Ponds 20 to Lord Hardwicke, Lord Chancellor, with a letter referring to a proposed Chancery proceeding. Lord Chancellor ordered Martin to show cause why he should not be committed for Contempt. He sought pardon and Lord Chancellor in consideration of this, his Public Office, the payment of costs, and his willingness to the suggestion that the banknote be sent to the Warden of the Fleet Street Prison for debtors for their relief, did not take any action.

In 1631, when a Prisoner threw a brickbat at the Judge and narrowed missed him, the Prisoner's right hand was ordered to be cut off and hung on the gallows. In 1938, when disgruntled litigant threw tomatoes at the Court of Appeal, consisting of Clawson and Goddard JJ., he was immediately committed to Prison but released after a few days of incarceration, because, he did not score a direct hit.

There are several instances of Contempt in the face of Court in English Tradition and they would not end even if we write a book on it. The development of Contempt Law in England did contribute great principles to the Law of Contempt, which are presently followed by several common Law Jurisdictions.

In the year of 1906 the House of Commons passed a resolution that the jurisdiction of Judges in dealing with Contempt of Court was practically arbitrary and unlimited and called for the action of Parliament with a view to its definition and limitation and a similar resolution was passed in 1908. Bills for the amendment of the Law of Contempt of Court brought forward in the years 1883, 1892, 1894, 1896 and 1908 but none of these met Lord Fitzgerald's protest with regard to the summary punishment of constructive contempt's.

In 1960 the Administration of Justice Act gave a right of appeal in criminal cases. After the provision of Administration of �Justice Act and believe the enactment of Contempt of Court Act, 1981 the recommendation of Phillimore Committee' requires serious attention.

On June 08, 1971 Lord Hailsham L. C. appointed a Committee under the Chairmanship of Lord Justice Phillimore to consider whether any change was required in the law relating to Contempt of Court? The Committee submitted its report in December, 1974. There were some general conclusions and recommendations. The bill finally received the Royal Assent on July 27, 1981 and become law on August 27, 1981.

The Law of Contempt has, in the words of the Committee on Contempt of Court which reported in December, 1974 'developed over the centuries as a means, whereby, the Court may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the Administration of Justice earlier in relation to a particular case on generally'.

Its uncertainties, anomalies and unique procedural features have been demonstrated on many occasion, and the appointment of a Committee to investigate the entire Law of Contempt was long overdue.

The terms of reference of the Committee which was eventually set up in 1971 chaired initially by Phillimore L. J. and latterly by Lord Cameron were taken to include Civil Contempt, as well a Criminal Contempt, and one of the principal recommendations made in the report is that the distinction between Civil and Criminal Contempt should be abolished.

In the late 1960's one of the most bitter points of contention between Journalists and the law arose over the question as to Whether or not-and if so, when newspapers committed a Contempt of Court by publishing material disclosing the commission of criminal offence, if the material was potentially prejudicial to the fairness of a subsequent Criminal trial The Journalist was at risk when criminal proceedings were pending or imminent, hopelessly imprecise time indicators as far as the Journalist was concerned.

Furthermore, the law imposed liability without proof of mens rea, the offence was one of the strict liabilities. Part of the purpose of the Contempt of Court Act, 1981 was to clarify all of this, which it did by saying in Section 2 (3) that the strict liability rule was to apply only when the proceedings were active.

European Court of Human Rights decided that the United Kingdom's Contempt law was not in compliance with the free speech principles enshrined in Article 10 of the European convention (Sunday Times Vs V. K), it let loose a chain of events where implications are still only gradually becoming apparent.

Whilst emphasizing that it is not its function to pronounce itself on an interpretation of English Law adopted in the House of Lords, the Court points out that it has to take a different approach. The Court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be interpreted.

In general, the 1981 Act goes a long way towards bringing the United Kingdom law in tune with the European convention on Human Rights. In interpreting the Act, the Court may consider the provisions of the convention to avert any breach of its items. The Act is, undoubtedly a liberalizing measure in important respects.

However, it also leaves untouched several areas of uncertainty in the Law of Contempt. Moreover, it should be remembered that liberalizing the letter of the law does not necessarily involve the liberalization of the practice of the law. The attitudes of those who bring contempt proceedings and those who adjudicate upon them are crucial.''

History of Contempt of Court in India

History of Contempt of Court in India, the roots of Contempt Law in India can be traced back to the pre-independence period. The East India Company took over the territories in India, which required the King of England to issue the Charter of 1726 that provided for the establishment of a Corporation in each Presidency Town.

This Charter is considered to be an important landmark in the history of legal system in India as it introduced the English Laws in the country. Mayor Courts were constituted in each of the Presidency Towns and were made the Courts of Record, and authorised to decide all civil cases within the respective town and subordinate areas.

Subsequently, in the year 1774, the Mayor's Court at Calcutta was replaced by the Supreme Court of Judicature at Fort William, Calcutta, under the Regulating Act, 1773.

The Mayor's Courts at Madras & Bombay were superseded by the Recorder's Courts, which were also later abolished and replaced by the Supreme Courts under the Government of India Act, 1800.

While the Supreme Court at Madras came into existence in the year 1801 by the Charter of 1800, the Supreme Court at Bombay came into existence in 1824 by the Charter of 1823. The Recorder's Courts & Supreme Courts had the same powers in the matters of punishing for contempt as was exercised by the superior Courts in England.

The Supreme Courts were in turn succeeded by the High Courts' under the Indian High Courts Act of 1861. The three High Courts of Calcutta, Bombay & Madras had the inherent power to punish for Contempt.

In 1866, the High Court of Allahabad was established under the Indian High Courts Act, 1861 and was constituted as a Court of record with the power to punish for Contempt.
In 1867, Peacock C. J. laid down the Rule regarding the power to punish for Contempt quite broadly In Re : Abdool and Mahtab, (supra) in the following words:�
There can be no doubt that every Court of Record has the power of summarily punishing for Contempt.

In [Legal Remembrance Vs. Matilal Ghose & Ors., (1914) I.L.R. 41 Cal. 173], the Court observed that the power to punish for Contempt was arbitrary, unlimited and uncontrolled, and therefore, should be�exercised with the greatest caution: that this power merits this description will be realised when it is understood that there is no limit to the imprisonment that may be inflicted or the fine that may be imposed save the� Court's unfettered discretion, and that the subject is protected by no right of general appeal.

The Division Bench of the Calcutta High Court considered this jurisdiction of the High Court in 1879 in ['Martin Vs. Lawrence', (1879) ILR 4 Cal 655] and observed:
The jurisdiction of the Court, under which this process (is) issued is a jurisdiction that it has inherited from the Old Supreme Court, and was conferred upon that Court by the Charters of the Crown, which invested it with all the process and authority of the then Court of King's Bench and of the High Court of Chancery in Great Britain.

Prior to the coming into force of the Contempt of Courts Act, 1926 there was a conflict of opinion among the different High Courts as to their power to punish for Contempt of Subordinate Courts. Madras & Bombay High Courts expressed the view that the High Courts have jurisdiction to deal with contempt of the Mofussil Courts. But the Calcutta High Court expressed the view that the High Courts in India did not possess identical power in matters of Contempt of their Subordinate Courts as possessed by the Court of King's Bench in England.

In [Sukhdev Singh Sodhi Vs. The Chief Justice S. Teja Singh & Judges of The Pepsu High Court, 1954 AIR 186, 1954 SCR 454], the aspect of Contempt of Court was broadly discussed-
�It is true the same learned Judges sitting in the Privy Council in 1883 traced the origin of the power in the case of the Calcutta, Bombay and Madras High Courts to the common law of England,�.. but it is evident from other decisions of the Judicial Committee that the jurisdiction is broader based than that. But however that may be, Sir Barnes Peacock made it clear that the words any other law in section 5 of the Criminal Procedure Code do not cover contempt of a kind punishable summarily by the three Chartered High Courts�.

Apparently, because of this the Privy Council held in 1853 that the Recorder's Court at Sierre Leone also had jurisdiction to punish for Contempt, not because that Court had inherited the jurisdiction of the English Courts but because it was a Court of Record�. The High Court of Allahabad was established in 1866 under the High Court's Act of 1861 and was thus constituted a Court of record�. The Lahore High Court was established by Letter Patent in 1919 and was duly constituted a Court of Record.

The Contempt of Court Act, 1926 (hereinafter referred to as the Act 1926) was the first statute in India with relation to Law of Contempt. Section 2 of this Act recognized the existing jurisdiction in all the High Courts to punish for Contempt of themselves and conferred on the High Court's the power to punish for Contempt of Courts subordinate to it. The Act also specified the upper limit of the punishment that can be imposed for the said Contempts.

In 1927, a Five Judge Bench of the Lahore High Court re-examined the aforesaid position in the matter of Muslim Outlook, Lahore� and affirmed its earlier decision in the case of ['The Crown Vs. Sayyad Habib', Indian Law Reports; Lahore (1925) Volume 6] observing that the Contempt jurisdiction was inherent in every High Court and not only in the three Chartered High Courts.

The Act 1926 was later amended in 1937 to clarify that the limits of punishment provided in the Act related not only to Contempt of subordinate Courts but of all Courts.
It is to be noted that while the Act 1926 was applicable to the whole of British India, the Princely States of Hyderabad, Madhya Bharat, Mysore, Rajasthan, Travancore-Cochin, Saurashtra & Pepsu had their own corresponding State enactments on Contempt.

In 1948, the Pepsu High Court was established by an Ordinance, Section 33 of which provided that it would be a Court of Record and would have power to punish for Contempt.
The Act of 1926 along with the aforementioned State enactments were repealed and replaced by the Contempt of Courts Act, 1952 (hereinafter referred to as the Act 1952), which made significant departures from the earlier Act.

Firstly, the expression High Court was defined to include the Courts of Judicial Commissioner, which were not so included in the purview of the Act 1926; and secondly, the High Courts, which now included the Courts of Judicial Commissioner, were conferred jurisdiction to inquire into and try any Contempt of itself or that of any Court subordinate to it. This was irrespective of as to whether the Contempt was alleged to have been committed within or outside the local limits of its jurisdiction, and irrespective of whether the alleged contemnor was within or outside such limits.

Under the aforesaid legislation the Chief Courts were also vested with the power to try and punish for any Contempt of itself. The legislation itself prescribed the nature, type, as well as the extent of punishment that could be imposed by the High Courts and the Chief Courts.

On April 01, 1960, a Bill was introduced in the Lok Sabha to consolidate and amend the law relating to Contempt of Court. Observing the law on the subject to be uncertain, undefined and unsatisfactory, and in the light of the constitutional changes in the country, the Government, to scrutinise the law on the subject and to further study the said Bill, appointed a Special Committee in 1961, under the Chairmanship of Shri H. N. Sanyal, the then Additional Solicitor General of India.

The Sanyal Committee examined the law relating to Contempt of Courts in general, and the law relating to the procedure for Contempt proceedings including the punishment thereof in particular. The Committee submitted its report in 1963, which inter alia defined and limited the powers of certain Courts in punishing for Contempt of Courts and provided to regulate the procedure in relation thereto. It is to be noted that the Committee in its report made specific mention of Criminal Contempt, recommending specifically the procedure (to be followed) in cases of Criminal Contempt.

The recommendations of the Committee were generally accepted by the Government after having wide consultation with the State Governments, Union Territory Administrations, and all other stakeholders.

The aforesaid Bill was also examined by the Joint Select Committee of the Houses of Parliament, which also suggested few changes in the said Bill; one of which was in respect of the period of limitation for initiating Contempt proceedings.

After the aforesaid deliberations the Contempt of Courts Act, 1971 (70 of 1971) came to be enacted (hereinafter referred to as the Act 1971), which repealed and replaced the Act 1952. The said Act 1971 inter alia categorises Contempt under two heads i.e. Civil Contempt and Criminal Contempt, providing thereunder specific definitions for both (Section 2). It also carved out a few exceptions, prescribing �guidelines for reporting and commenting on Judicial proceedings that would not attract the provisions of the Act.

For example, fair and accurate report of a Judicial proceeding (Section 4) and fair comment on the merits of any case which has been heard and finally decided (Section 5) would not give rise to the proceedings under the Act.

The Act also categorically provided that an alleged act would not be punishable thereunder unless it substantially interferes or tends substantially to interfere with the due course of Justice (Section 13). The Act also provides for the period of limitation for initiating the contempt proceedings (Section 20).

It can be observed from a scrutiny that since the enactment of the Act 1926 and subsequently with that of the Acts of 1952 and 1971, the power of the Court to impose punishment for Contempt of the Court ceased to be uncontrolled or unlimited.

Modern law, is a culmination of a long journey from divine law to natural law and further positive law, and has retained some of the principles and beliefs enshrined in early legal thought. Although modern law is thought to be rational and free from superstition and myth, we see that it often clings on to archaic conceptions of the Court, often misplaced in today's context. The Law of Contempt is an excellent example of this dichotomy between rationality and mythology surrounding the Judiciary.

The concept originated in English medieval monarchies as a way to preserve the unchallengeable authority of the King, who was believed to be the fountainhead of Justice. The authority of God as the last word was believed to be manifested in him, the human sovereign.

We, the People of India made the Constitution of India and the sovereign Republic of India, and all power exercised by the three instrumentalities of State function under the Constitution. Its Preamble speaks Justice - social, economic and political - as a fundamental privilege of the people. Social Justice and equality before law are of more value to the common masses, while the higher classes are often allergic to the under-privileged and the have-nots.

The Contempt of Courts Act, 1971 is one of the most powerful statutes in the country. It gives the constitutional Courts wide powers to restrict an individual's fundamental right to personal liberty for scandalising the Court or for wilful disobedience of any Judgment, Writ, Direction or Order.

Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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